March 05, 2011

Metro's random bag searches (II): A flawed policy made worse

In my prior post I introduced the DC area Metro system's random bag search program, and provided footage of the transit system's police chief Michael Taborn stating that bag search refusers would "be observed. Be watched," if they were so bold as to assert their Fourth Amendment rights.

As I wrote, that seems to be to show that the bag search program is illegal "even under the permissive 2006 MacWade v. Kelly court ruling WMATA relies on to claim its program passes constitutional muster."

MacWade v. Kelly

The MacWade v. Kelly ruling itself seems quite flawed to me. First, the case history presented by Judge Straub is a deeply depressing story of how a mighty oak called the Fourth Amendment has been whittled down to a toothpick by successive findings of "special needs" justifying ever widening intrusions on privacy and freedom from suspicionless search. Yet in its earliest manifestations, a key, though unacknowledged, aspect of that case history was that the subjects of those searches could avoid the search altogether.

...the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air

This history suggests to me the case was not just wrongly decided, but perhaps wrongly argued by the plaintiffs; they may have had more luck suggesting that for many mass transit users, such avoidance is essentially not possible. We've built our lives around the necessity of using mass transit, so that routine suspicionless searches threaten to become an everyday part of our lives in a way they don't for, say, air travellers or museum goers.

But the deeper problem was that the judges gave too much credence and too much weight to the contentions of security consultants like Richard "Against All Enemies" Clarke. Clarke et al asserted that the whole random search program is an effective deterrent, even if a given individual is all but certain not to be screened.

That essentially required assuming (presumably under oath) that terrorists are idiots, flummoxed to a head-scratching standstill by the simple stratagem of random searches at rotating stations.

Yet even I -- not steeped in the evil of terrorism -- can surmise that bad people who want to attack a place could easily adjust to random, laughably thin defenses of that place. Planners could adjust by either sending in more attackers, or giving them more flexible plans: attacking the shopping center next door if they happen to encounter a screening station -- or , as Ms. Zinkl pointed out, a bus instead of a train or platform within the same system.

"May decline to be searched." Period.

Still, while swallowing Clarke's guff whole, the court admitted there was a privacy issue at stake, and remained unwilling to give up on the Fourth Amendment altogether. While at pains to insist it didn't matter a great deal to them, the three judge panel still ruled that the New York procedures were "minimally intrusive" and "narrowly tailored", and counted the ways, including:

(1) passengers receive notice of the searches and may decline to be searched so long as they leave the subway [...]

To my way of thinking, that's that. It's not "may decline to be searched, but should expect a knock on the door from the FBI." It's simply "may decline to be searched." Period. A criterion established to preserve a fig leaf's worth of the Fourth Amendment simply can not mean the person exercising that right can expect to wind up on some FBI agent's to-do list. Thus, Taborn's comments on January 5th illustrated a new flaw in an already flawed policy.

Next steps

As I mentioned in my first post here, the course of the local debate over bag searches echoes familiar national ones. Two elements of our nation's sled ride down the slope of diminishing civil liberties are (1) the near absence of any brakes applied by civilian oversight, which defers almost completely to (2) security 'experts' pushing measures that are highly questionable -- both in terms of civil liberties and in terms of security -- as necessary and effective.

Thus, new board chairman Catherine Hudgins (day job: Fairfax County supervisor) was reported to have claimed the issue was "out of our hands" in remarks during a February 7 public meeting in Reston, Virginia. WMATA board discussions of the issue on January 27th and February 10th were similarly disappointing.*

On both occasions, some directors framed the bag search program as a response to a specific threat, when this was explicitly denied by their own police department. On both occasions, directors such as Downey, McKay, Hudgins and Downs said or implied that the General Manager and Chief of Police were authorized to implement the bag search program on their own, and that the directors' job -- far from living up to their oaths to the Constitution -- was mainly to communicate to the public "what will happen to them," in Hudgins' rather unfortunate choice of words.

That being the case, the task of reversing or setting limits to Metro's bag search program has fallen to a coalition of local and national civil liberties groups including the ACLU of the National Capital Area (ACLU-NCA), Defending Dissent Foundation, the Bill of Rights Defense Committee, and local groups such as Montgomery County Civil Rights Coalition (a group I'm with) and DC Civil Liberties Coalition. We've set up a campaign to lobby directors directly.

I also strongly urge readers in the area to join with us in a petition and education campaign about this infringement on our Fourth Amendment rights; here are ACLU-NCA and Montgomery County links to learn how, when, and where.

Or the cost of living in a free society is some number of deaths when the occasional plot or madman

I am sure this happens only in free societies.They hate our freedom is easy to swallow once it is believed that this is only free society in the world and skip considering motives of the perpetrators of such terrorist acts.

what security would be appropriate to deter someone from bringing a bomb on the train and putting it under a seat, walking off the train and detonating it?

What security would be appropriate to deter someone from raping or murdering or robbing people in general?

I mean, we have actual problems with rape and murder and robbery right now. Subway bombers are a theoretical problem in the US. It seems kind of absurd to ignore the actual problem so as to focus on the imaginary one.

@Bill Jones: we haven't gone to the courts as a first resort. We first worked on the 'mini-legislative branch' that is the genus for that odd creature, the WMATA board of directors -- through their buffer, the Riders Advisory Council, then on them via visits to board meetings, direct lobbying, and email lobbying.

Second, though, I certainly take what may be your main point: there's something a little quixotic about our fight, the deck is stacked against us. But I think that win or lose, the fight itself is important, chronicling it is important. Even if the program stands, it's already true that no one can say "you let it happen on Metro, why not on X?" We'll say "no we did not *let* it happen, it was done *to* us."

It does seem a bit odd, at least to me, that the same people argue two apparently opposite things: First, they argue most vociferously that they should have a right (under the second Amendment) to bear arms to protect themselves against government tyrrany. Then they argue that the government must have the power and authority and ability to conduct all manner of intrusive and coercive activities in order to protect them against some threat (e.g terrorism). Which latter sounds at least as much like tyrrany as anything the government otherwise does. What is wrong with this picture?

what security would be appropriate to deter someone from bringing a bomb on the train and putting it under a seat, walking off the train and detonating it?

The trouble is that this question is framed too narrowly. Let's also ask what security would be appropriate to deter someone from bringing a bomb into a movie theater, or concert hall, or shopping center, or sports stadium, or parade route, or....

In other words, any measure that is justified for the subway should also be justified for other public places where there are lots of people. So we do have to be a bit careful, and recognize where acceptance of these measures for the subway leads.

The high price of freedom is presently mostly a theoretical discussion, since no bomb has gone off, no group of mad men have sprayed a train full of passengers with gun fire. If that never happens, the security-first folks can claim credit and 4th amendment fans can claim it was never necessary in the first place. If it does, much of the above will ring hollow and mandatory searches of all passengers will be demanded by the vast majority of Americans.

I would be curious to know what consensus, if any, there is on the progressive left of the security regime that should be implemented post 9/11.

FWIW, the last couple of Astro's games I attended, several years back (baseball bores me to tears) featured searches of all bags etc. Same with Texans' games. Again, FWIW.

What it comes down to is:
- you can choose freedom, or
- you can choose security

Mostly, we choose a mix of both, of course. But when the fear quotient rises, as it did after 9/11, the mix shifts towards security. And another fear (of being blamed if anything bad happens) means that a shift back towards freedom is challenging/risky for any politician to advocate.

Or the cost of living in a free society is some number of deaths when the occasional plot or madman succesfully blows up a train or building?

Is there anyone that really disagrees that the answer to this question, as posed, is yes? I mean, there is probably a level of security we could apply that would diminish the already very unlikely threat of death from terrorism to near zero. It would involve highly invasive government intrusions and certainly a repeal of the fourth amendment for starters but it could be done. But does anyone really advocate such a thing?

My point is that everyone is willing to accept some trade off of freedom versus safety. The sticky issue, of course, is where that balance is best established. But since no one is seriously arguing that the balance should tip all the way to the consideration of safety then the answer is basically always yes, some lives will be lost at a cost of freedom.

The high price of freedom is presently mostly a theoretical discussion, since no bomb has gone off, no group of mad men have sprayed a train full of passengers with gun fire.

No group of mad men, perhaps, but mass shootings are . . . not an exactly an irregular occurrence in this country. We just tend to forget and not aggregate them in our heads because they don't follow a pattern aside from the fact that they're nearly all perpetrated by lone white guys.

For purposes of comparison, approximately zero people have been killed in the United States by terrorist bombing incidents since Sept. 12, 2001. In that same time period, at least 162 people have been killed and another 101 injured in 18 separate mass shooting incidents.

In short, "theoretical" my rear end.

Oh, wait, you were talking about Muslims. Oh, oh, nevermind.

I would be curious to know what consensus, if any, there is on the progressive left of the security regime that should be implemented post 9/11.

For my money, securing the cockpit doors on airliners was just about the only step that needed to be taken. Everything else is theater.

For purposes of comparison, approximately zero people have been killed in the United States by terrorist bombing incidents since Sept. 12, 2001. In that same time period, at least 162 people have been killed and another 101 injured in 18 separate mass shooting incidents.

If you juggle dates, circumstances and countries, you can come up with any statistic you like (add in England and Spain and the numbers go up). You make a fair point about mass shootings. Yet, most of these are by deranged individuals, not terrorists in the commonly accepted meaning of the term. And I don't recall any shootings on public mass transit.

I am a 4th amendment fan, particularly when it comes to one's person, home, papers and effects being unreasonably searched, i.e. the relevant text of the 4th amendment. The question is whether a random search before entering public mass transit is unreasonable. I suspect minds differ on this point.

Is the proposed search protocol the result of intelligence upticks or just something that someone got around to thinking of because it's their job to think of stuff to do?

Phil, would you do away with luggage and passenger searches on airlines?

FWIW, the last couple of Astro's games I attended, several years back (baseball bores me to tears) featured searches of all bags etc. Same with Texans' games. Again, FWIW.

And the dense lines formed as a result of those searches represent terrific opportunities for mass murder, where it would be much easier to kill a given number of people with a small explosive or incendiary device than inside the stadium.

Who needs to get something through security when everyone is packed together outside, like sitting ducks, waiting to go through security?

At least, that's how it looks to me when I go to Eagles games.

God forbid anyone comes up with a beer-can bomb, because they could be left all over the place around the security line and no one would give them a second look.

And the dense lines formed as a result of those searches represent terrific opportunities for mass murder, where it would be much easier to kill a given number of people with a small explosive or incendiary device than inside the stadium.

Actually, the lines I've been in move pretty quickly, suggesting the searches are less than thorough, which, in fact, they are far less than thorough. The question I have is: what is one of our aged/very young searchers supposed to do if they actually find something?

Eagles fans should be searched as a matter of course and sound public policy. Everyone knows that.

I would be curious to know what consensus, if any, there is on the progressive left of the security regime that should be implemented post 9/11.

None?

I mean, I guess hindsight is 20/20, but it seems to me that what we needed to do after the terrorist attack in September of 2001 was to change the protocol for handling attempted hijackings, maybe tighten up our visa policies, hire a bunch of arabic speakers for the various service branches and CIA/FBI, and, probably most importantly, re-examine our foreign policy with respect to the Arab world.

There are probably a couple of other small to medium things that I would put in the list, including a serious and fully supported by the executive branch examination of the events and failures that led up to the attacks (including the anthrax attacks). Instead, well, not so much.

But the full blown (and still expanding) "security regime" we have is not something that seems necessary, useful, or constitutional (in many respects), other than as something for politicians to point to in the case something bad happens. And I understand their concern, after George W. Bush lost the 2004 election in a landslide for his 9/11 failings. Oh.

I think Marty's comment at the top of the thread gets at a real issue here, and that may have been his intent when he posed the questions he did. I'm not so sure that he's obliquely advocating the quasi-random-search regime, but I haven't researched his previous comments on the issue.

At any rate, there may be very little that we can do, in practice, that will significanly reduce the chance that someone leaves a bomb on a train, not without bringing mass transit to a grinding halt and defeating the purpose of mass transit (which would delight OBL and friends).

That's what bugs me about it. If I thought random searches would be highly effective, I might be more inclined to accept the intrusion. But, since I don't, I'm not. I think it's a big, stupid waste of time and money - which means it doesn't do well in terms of balancing out the loss of privacy and freedom of movement it represents.

If you juggle dates, circumstances and countries, you can come up with any statistic you like (add in England and Spain and the numbers go up).

Since we were discussing a post-9/11 world, I assumed the date was relevant. It doesn't look any better if you go back to, like, forever.

You make a fair point about mass shootings. Yet, most of these are by deranged individuals, not terrorists in the commonly accepted meaning of the term.

I'm sure, at the moment of their dying breaths, that distinction was terribly important to the victims. In any case, I'd venture the opinion that we don't label them "terrorists" in part because they ARE individual (usually) white (usually) men.

Actually, the lines I've been in move pretty quickly, suggesting the searches are less than thorough, which, in fact, they are far less than thorough.

Which means they are likely pointless.

Something else to consider, regarding baseball v. football, not to mention geography, is that searches take longer in the winter, particularly as you go north, where people are wearing coats, hats, gloves, etc. as opposed to shorts and t-shirts in the summer.

That and the culture of the fans.

Baseball fans stroll in casually over a longer period of time, whereas football fans tend to stay in the parking lot until the last minute so they can suck down every last (cheaper-than-inside-the-stadium) beer they can manage before kick-off.

"I'm not so sure that he's obliquely advocating the quasi-random-search regime, but I haven't researched his previous comments on the issue."

I was not advocating that regime at all, in fact, I would be for the inclusion in any protest of the regime an explicit statement by those in opposition that they understood that there is little this regime would do to enhance safety, along with the objection to the loss of privacy.

I believe we need to let our leaders know that we expect reasonable and competent security where it is possible, within the realm of privacy concerns, and that we accept the inherent risks that being alive in a reasonably free society entail.

I think that there are places I don't mind my bag being searched, entering Disney(in particular) is one, the ball game is another, lots of people going for fun, I can get there early and I have the time, I don't have to go, and everybody with a bag can be searched. Seems reasonable just to me. If not to you, ok. Randomly, getting on the train to work seems much more of an intrusion and less effective.

My question was sincere, what are places and limits that would be acceptable?

To be perfectly honest, McK, it looks to me like you're trying to do some quick goalpost moving to protect a thesis. (Or call it "lawyering" if you want.) Your statement was that "the high price of freedom" is largely theoretical, but you want to restrict yourself solely to "terrorist" incidents, which is deck-stacking of the worst kind.

For one thing, mass shootings, and gun deaths generally, are a perfectly good non-theoretical example of the "high price of freedom." We accept a certain amount of death and destruction in our culture to retain certain freedoms.

Automobile deaths are another good example, perhaps an even better one, because unlike firearms ownership, no Constitutional text directly addresses an individual right to own or operate a vehicle of any kind. Other western countries have far stricter driver education and licensing programs than we do, but we accept an extremely liberal education/licensing program despite tens of thousands of deaths per year.

Given that, why should "terrorism" be sectioned off and treated differently, especially since what we label "terrorism" is extremely inconsistent anyway? Was killing Dr. Tiller "terrorism?" Why or why not? How about Oklahoma City?

I am a 4th amendment fan, particularly when it comes to one's person, home, papers and effects being unreasonably searched, i.e. the relevant text of the 4th amendment. The question is whether a random search before entering public mass transit is unreasonable.

I thought the general rule was that a search without a warrant was per se unreasonable, unless one of the exceptions to the warrant requirement was satisfied. A quick look at wiki tells me Scalia's view, which seems to be getting more credence, is that a search must merely be "reasonable" in the absence of a warrant for it to be constitutional, and that the 9th circuit has held that "airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose," whatever that means.

I suppose under that last standard that random searches of people entering mass-transit might pass constitutional muster, but it seems to me that judicial interpratation of the 4th Amendment has lost its moorings and we've moved to a narrow, "purposive-effectiveness" reading of the amendment, much like that of the 1st and 5th Amendments, and probably others.

I actually thought of that. But there are far more restrooms within the stadium than entrances to the stadium, so there's no comparison in terms of the number of people between the two types of lines. It might feel like there are more people in line for the bathroom when you have to pee really bad, but that's another issue.

Given that, why should "terrorism" be sectioned off and treated differently, especially since what we label "terrorism" is extremely inconsistent anyway? Was killing Dr. Tiller "terrorism?" Why or why not? How about Oklahoma City?

Fair questions. Answer: I used the phrase, "terrorists in the commonly accepted meaning of the term" and by this I mean a reasonably identifiable group whose agenda is to use terror as a weapon against the US (or any other country). "Terror" means attacks on civilians in the absence of a declared war (in a declared war, it's a war crime depending on circumstance). There is nothing we can do about random psychopaths. A 'one off' act, such as McVeigh's, is surely terrorism but it appears to have began and ended with him. Ditto Tiller.

Currently, we face a concerted intent to inflict high casualty attacks from OBL and his sympathizers and affiliates. Whether OBL et al have the capacity to do more than what we have seen in the last two years indicates a significant degradation in his/their ability to plan and execute. I suspect many of the tactics employed to accomplish that degradation would not be well received by most at ObWi.

I think random searches in public are feel good tactics in the absence of some kind of intelligence pointing to a particular location and then searches for a limited duration might be of some value. My point, however, is that IF there is a high casualty attack on mass transit, the aftermath will be a lot uglier 4th amendment-wise than anything now being discussed.

There is nothing we can do about random psychopaths. A 'one off' act, such as McVeigh's, is surely terrorism but it appears to have began and ended with him. Ditto Tiller.

Grrrrrrr. I wish Jes was still posting here, because Dr. Tiller's assassination was NOT a one off, but part of a pattern of harassment and violence against abortion providers that's been going on for decades, and continues even now.

I suspect many of the tactics employed to accomplish that degradation would not be well received by most at ObWi.

Yes, us silly ObWi-ers, not believing that the ends justify the means. It's almost as if we have principles and don't retreat into moral relativism as soon as it's convenient to do so.

My point, however, is that IF there is a high casualty attack on mass transit, the aftermath will be a lot uglier 4th amendment-wise than anything now being discussed.

Oh, I have little doubt. Americans will, given the choice between principle and expedience, choose expedience nearly every single time.

"I think random searches in public are feel good tactics in the absence of some kind of intelligence pointing to a particular location and then searches for a limited duration might be of some value. My point, however, is that IF there is a high casualty attack on mass transit, the aftermath will be a lot uglier 4th amendment-wise than anything now being discussed."

I guess I think random searches will have no value even if you have the rough location. I have no problem with beefing up the *numbers of police* at a site that seems to be targeted, and little problem with doing so generally if threats and crime demand it. I have no problem with giving them all radios (this is an actual complaint of MTPD police vs. the chief). I have no problem with informing them thoroughly who all they should "be on the lookout for". These are all (1) constitutional and (2) more concretely effective security measures than "hey! there's a hay stack! let's pretend we're keeping bad guys from hiding a needle in it" ones like the bag search program.

I agree that if there's a mass attack, civil liberties will suffer; we've seen that after 9/11. We're trying to make the point -- both now *and* in advance -- that stupid security measures don't help.

I wish Jes was still posting here, because Dr. Tiller's assassination was NOT a one off, but part of a pattern of harassment and violence against abortion providers that's been going on for decades, and continues even now.

Led by who? There are plenty of organized abortion opponents, but which ones are calling for killing doctors?

It's almost as if we have principles and don't retreat into moral relativism as soon as it's convenient to do so.

There is no doubt that the progressive left has principles. Some on the left think they are unique in this regard. Whether the progressive left's principles would hold up day in and day out in an unprincipled world is another question altogether.

I guess I think random searches will have no value even if you have the rough location. I have no problem with beefing up the *numbers of police* at a site that seems to be targeted, and little problem with doing so generally if threats and crime demand it.

Why not allow searches at a targeted sight at an officer's discretion? Seems to me that one of four things things happen, assuming the intelligence is valid: the bad guy goes home, the bad guy gets caught, the bad guy doesn't get caught but fails for other reasons, the bad guy gets away with it. Two of four are positive outcomes, the third is luck and the fourth is the inherent risk that can't be controlled. If the fourth happens, not allowing searches prior to a successful attack is truly a grand and pointless gesture, because searches will surely be mandatory in the aftermath.

Why not allow searches at a targeted sight at an officer's discretion?
If an officer can justify his/her reason for searching someone, fine. That's police work, not guess work.

Your judgment of positive outcomes seems solely based on catching the bad guy; if so, it seems to me you simply assume what you (seem to) wish to prove: that random bag searches are OK. Your analysis disregards the countless searches of innocent people; those should be counted as substantial costs, not just of time, but of dignity, and of conceding a 4th amendment right to not be stopped unless there's individualized suspicion.

Your analysis disregards the countless searches of innocent people; those should be counted as substantial costs, not just of time, but of dignity, and of conceding a 4th amendment right to not be stopped unless there's individualized suspicion.

Actually, my analysis assumes that the vast majority of travelers under circumstances where there is a targeted area would consent to a search. Consent is a an exception to 4th amendment limitations. Further, whether the cost is substantial or incidental depends on a whole host of variables. I suspect 'incidental' would outweigh 'substantial' for most people.

We aren't talking about random searches for no better reason than to search in our limited example. We have intelligence that points to a particular location. Why not, under those circumstances, allow a more aggressive search regime? To put it differently, what would be your explanation after a successful attack if an officer testified that he saw the perpetrator but was forbidden from stopping and searching him/her? The substantial cost of searching someone who might object? How far do you think that would go?

For my money, securing the cockpit doors on airliners was just about the only step that needed to be taken. Everything else is theater.

Phil, I think I would go so far as to say that there were actually 3 changes after 9/11 that actually make a difference. Or at least have the real potential to do so.
1) As you note, closed (and reinforced) cockpit doors.
2) Occasional armed Air Marshals on flights.
3) Probably most important, passengers now realize that, if something happens, it is critical that they take action. And, as has been demonstrated a couple of times, they now do so.

Beyond that, it's all theater. Worse, it's bad theater, badly acted. Worse still, we now have long, densely packed lines of people waiting at security checkpoints, where there is at least the potential for convenient attack.

@McKTX; "Consent" is another kettle of 4th amendment fish; it's been redefined very broadly and unacceptably under 1970s+ SCOTUS "war on drugs" rules. But history aside, even here "consent" is diminished if
(1) you earn FBI scrutiny for withholding it,
(2) you don't know you can exercise it, or
(3) both

WMATA periodically broadcasts Chief Taborn announcing the bag search program, speaking of making every effort to reduce inconvenience, blah blah blah. They do not add -- but should -- that it is a person's right to refuse the bag search and not enter WMATA. They would also need to add the bit about FBI/DHS scrutiny for doing so -- until such time as at least that feature of the program is reversed in a court ruling.

To put it differently, what would be your explanation after a successful attack if an officer testified that he saw the perpetrator but was forbidden from stopping and searching him/her?

This question needs some clarification. Is the officer testifying that he saw the perp without having any reason for suspicion, only learning after the fact that the person he saw was the perp? Why was the officer forbidden from searching, and in what sense? Did the officer want to search the perp, but was prevented from doing so, either by direct order or following an established protocol? Or did the officer have no reason at the time to search the perp and "forbidden" to do so only in theory?

If the officer did have good reason to believe that the perp intended to commit an act of terrorism, I don't see why there would be anything forbidding the officer from searching him.

It seems to me that the only thing that would prevent an officer from searching someone would be a lack of reasonable suspicion, in which case the officer should be testifying that he didn't have any reason to think the guy was a terrorist, rather than saying he was "forbidden" to do so.

The scenario seems to assume that the officer should have been able to search the guy, but something (what?) kept him from doing so. I don't see where anyone is arguing for such a thing.

Did the officer want to search the perp, but was prevented from doing so, either by direct order or following an established protocol? Or did the officer have no reason at the time to search the perp and "forbidden" to do so only in theory?

The former, and by following established protocol, i.e. no searches without probable cause. Reasonable suspicion, i.e. "it just didn't look right", isn't enough.

"Terry Stops" are already authorized for police that have a reasonable suspicion. Frisking for weapons only requires a reasonable and articulable suspicion that the person detained may be “armed and dangerous”.

These are short of probable cause, and very different from random searches for no reason.

I think the only part about the post that would imply that a Terry stop should not be authorized is that refusing to be searched (ie, leaving rather than endure the search)should not be enough to support "reasonable suspicion." If the officer has other reasons that would support a search, I don't see anyone arguing against it.

I infer that this is a random program unconnected with any form of colorable intelligence--am I correct?

Yes. No need to infer -- here's a link (.pdf, 1page) to a WMATA statement confirming the lack of colorable intelligence: Why now?
While there is no specific or credible threat to the system at this time, this program is part of our changing security posture.

TN--thanks for the link. Apparently, they only search when they get a hit on the ionizing technology which somehow detects explosives. Are you saying it violates my 4th amendment rights to have bomb sniffing dogs or technologies in public mass transit locations?

From the link, it appears that no one would be searched unless there is a hit. Why is this wrong?

Apparently, they only search when they get a hit on the ionizing technology which somehow detects explosives. Are you saying it violates my 4th amendment rights to have bomb sniffing dogs or technologies in public mass transit locations?

My laptop has, on several occasions, set off the ionization explosives detectors at airports. Apparently, the detector thinks my laptop has nitroglycerin inside it. I've never handled explosives. My laptop has never been near explosives. These types of detectors apparently have a high false positive rate. I think that for a sufficiently high false positive rate, searches conditioned on failing the ion test would certainly violate one's fourth amendment rights. After all, a sufficiently high false positive rate is equivalent to random searching.

Moreover, I think we should be very cautious about bomb sniffing dogs. Is there any evidence that bomb sniffing dogs are actually detecting explosives residue rather than the subconscious responses of their handlers to people around them? If an officer's completely unsubstantiated "hunch" is insufficient criteria to search someone, I don't see why it should suddenly become sufficient after we launder the hunch through a dog.

The random part of the search is who has to submit to the ion detectors. For example, one out of twelve people would be randomly selected to put their carry on bags through screening or wipe downs that test for explosives. If there is a hit on the ion detector, then there could be a more intrusive search, or you could choose to leave rather than let someone look through your bag.

The random part of the search is who has to submit to the ion detectors. For example, one out of twelve people would be randomly selected to put their carry on bags through screening or wipe downs that test for explosives. If there is a hit on the ion detector, then there could be a more intrusive search, or you could choose to leave rather than let someone look through your bag.

And my question is: what is the 4th amendment issue here given that we are talking about publicly funded transportation?

The 4th amendment issue is that it is a suspicionless search, carried out by the government, on someone who is merely going about his business going to or from work. If you refuse to be searched, they plan to use that refusal as a "reasonable suspicion" that gets you more scrutiny.

Moreover, I think we should be very cautious about bomb sniffing dogs. Is there any evidence that bomb sniffing dogs are actually detecting explosives residue rather than the subconscious responses of their handlers to people around them? If an officer's completely unsubstantiated "hunch" is insufficient criteria to search someone, I don't see why it should suddenly become sufficient after we launder the hunch through a dog

Which leads to a lot of other interesting questions, given the 2009 Melendez-Diaz ruling set some very defendant-friendly rules on how expert witnesses are to be confronted -- e.g., a lab technician's report cannot simply be entered into evidence without giving the defense an opportunity to question the lab tech who performed the test in question on his/her expertise and the performance and outcome of the test. And ISTR recent reports that "drug-sniffing dogs" actually fail some large percentage of properly-designed tests.

We had bomb sniffing dogs at check points in Iraq. On at least one occasion, several dogs allowed a truck full of explosives into the compound. The explosives were varied types, and literally hundreds of pounds.

The explanation was that the dogs are trained to smell minute amounts of explosives, and were probably confused by the quantity...they essentially learned they should react to not just the smell of explosives, but to tiny amounts of it (since that is all they were tested with.)

But what is wrong with searching a bag that shows a positive hit when the carrier is entering publicly funded transport?

The wrong is in having to submit your bag for the testing in the first place. That search is conducted without suspicion. People have lots of reasons why they don't want their bags searched without being terrorists. Maybe they have a p*nis pump in there, or a vibrator, or drugs, medications, intellectual property, government documents that are classified, carrying a weapon whether legally or illegally, etc.

But we don't have to have a reason, because we are supposed to safe from suspicionless searches.

Do you distinguish riding on public transportation from driving on public roads? Should all vehicles be subject to suspicionless searches for explosives?

I realize dogs and machines are flawed. But what is wrong with searching a bag that shows a positive hit when the carrier is entering publicly funded transport?

What jrudkis said.

Beyond that, I don't see how this sort of searching is in the public's interest. Let's assume that the Metro gets the most awesome effective searching system in the world. Will terrorists still try to bomb the Metro? Of course not. They'll bomb the mall at Tyson's Corner or the National Mall or one of the Smithsonian Museums or they'll bomb the subway system in New York or Boston. Diverting bombers from attacking the subway to attacking a shopping mall is very good for subway managers; but it is bad for the public: people still die. And in the meantime, time and money is wasted. Our goal should be to reduce the number of people killed by terrorists, not reduce the number of people killed by terrorists in subways.

I promise that I there will be a lawyer joke open thread in the future (though this week, the instrumentalist jokes open thread is scheduled), so try and hold off with any ambulance chaser references until then. Thanks.

Our goal should be to reduce the number of people killed by terrorists, not reduce the number of people killed by terrorists in subways.

I think there is an argument for hardening sites that would have more adverse impact than others: if blowing up the subway means the Capitol is effectively shutdown, it should be harder to attack than a strip mall, or even elementary school. The number of deaths may be the same, but the collateral damage to the economy can be vastly greater. Vital things that are expensive or hard to fix do need more protection than a strip mall. I can see putting a lot of effort into protecting Eagles football games, while disregarding Cowboy stadium altogether, for example.

You are definitely right that the process simply shifts targets, just like home security systems and large dogs make your neighbor more likely to be targeted by thieves than you.

Is there something like Godwin's stating that, as an online discussion continues, the probability of hating on the Cowboys increases? I mean, it is kind of odd that a discussion of random searches on the DC metro ended up here, even if I sort of started it down that path by mentioning security lines at Eagles games. (Not that I'm complaining, mind you. I enjoy some good Cowboy hate as much as the next guy, probably more.)

I promise that I there will be a lawyer joke open thread in the future (though this week, the instrumentalist jokes open thread is scheduled), so try and hold off with any ambulance chaser references until then. Thanks.

It wasn't a joke! McKinneyTX really does have at least one client who operates an ambulance service! He made reference recently in another thread to said client being met with a demand from police for hundreds and hundreds of documents concerning one of its vehicle's stops, pursuant to a murder investigation. Hence my comment.

Another example of recent gov't overreach. A client of mine is a large, non-profit ambulance service. A police officer, using a grand jury subpoena, demanded records with no redactions on 700 patients treated and transported by my client. No probable cause, no privacy concerns, just turn over the records at your expense instanter. The reaction when we raised the above issues was to threaten with contempt of court etc. We'll win this eventually, at a cost of 15K or so, maybe more. Recourse? None. Oh, and to be clear, my client is in no way the grand jury's target. They are looking into a murder that occurred at one of the addresses serviced by my client. That record was produced immediately in response to the subpoena.

I know I can be a dick, but I don't just make things up -- McK really did have a Fourth Amendment complaint recently that really was related to an ambulance service.